Marianna Antonucci v. Vincent Antonucci (2014)

MEMORANDUM OF DECISION

The plaintiff wife (“wife”), whose birth name was Marianna Sandolo, and the defendant husband (“husband”), were married in Stamford, Connecticut, on April 10, 1988.   They are the parents of two adult children, John Vincent and Roberto Antonucci.   The younger is under the age of twenty-three, but according to the testimony of the wife, he is unlikely to attend college.   The parties have been living separate and apart for approximately two years.   Neither party graduated from high school, and both are currently employed.   The wife is a co-owner with her mother of a family restaurant in Stamford, and the husband is a heavy equipment operator for Lee Rizzuto, also in Stamford.   Both have comparable incomes of approximately $50,000.00 per annum, and both have, apart from a couple of relatively brief periods of unemployment by the husband, been steadily employed throughout the marriage.   Except for some minor conditions, each enjoys generally good health.   Neither claims alimony from the other.

Throughout the marriage, the couple benefitted from substantial gifts from their respective families, by far the greater coming from the wife's parents.   Remarkably, they have managed to save nothing—no safety net;  no retirement accounts.   While the wife generally paid the bills, both are relatively unsophisticated when it comes to finances.   Neither was able to live within their means, enabled no doubt by the generosity of the wife's parents.   They bought, improved, and sold some real properties, yet their investments had marginal returns at best.   For the first 10 years of marriage, and later, at the end, they lived in her parents' home.   Prior to moving back with the wife's mother, the couple were residing at 501 Roxbury Road, Stamford.   They sold this property in June 2007.  (Exhibit # 6.)   They own several automobiles between them, as well as a modest timeshare in Florida.

The principal bone of contention is the wife's interest in the real property at 85 Doolittle Road in Stamford, formerly the residence of the wife's parents.   On November 9, 2005, following the death of the wife's father, her mother, Filomena Sandolo, transferred her interest in the real property to her daughter by way of a Quit Claim Deed (Exhibit # 2), while at the same time retaining a life estate in the property.   The conveyance of the real estate was made pursuant to a certain Agreement (Exhibit # 1), also dated November 9, 2005, signed by both parties and Filomena Sandolo, which contained the further proviso that the husband waive any claims thereto, particularly in the event of a divorce.

The court heard the testimony of both parties, as well as that of Filomena Sandolo, as to the facts and circumstances surrounding the preparation and execution of the Agreement.   From them, the court has gleaned the following:  After the death of her husband, Mrs. Sandolo wanted to remain in her own home, however, she did not wish to live there alone.   Accordingly, she asked the husband and wife if they would like to live with her again.   She indicated that she would make some substantial improvements to the home if they would do so.   Although, the first experience was not an altogether pleasant one (In fact, the parties moved out after the first 10 years, over conflicts between the husband and members of the wife's family, whereby the wife was placed in the middle), both parties agreed.   Filomena called her family attorney, Joseph Pankowski, to draft certain documents and to bring them to her home.   He did so on November 9, 2005.

Each party called upon an expert to value the real estate at 85 Doolittle Road, Stamford, and the wife's remainder interest therein.   The wife's expert, Armand Ligouri, testified that the value of the real property and improvements as of May 14, 2013, was $1,280,00.00, which opinion was supported by a written appraisal (Exhibit # 3).   For his part, the husband's expert, James J. Tooher, testified that as of that date, the value of the property was $1,325,000.00, which was also supported by a written appraisal (Exhibit # 7).   While the court found both witnesses credible on this point, it finds that the more reliable number is the lower number.   However, in arriving at the value of the wife's remainder interest, the experts varied in a range from $513,300.00 (wife's expert) to $634,000.00 (husband's expert).   While the court finds that the methodology employed by Mr. Ligouri to be more reliable (Exhibit # 4), it finds that he relied upon an article published in 1998 and applied a 10% discount, which the court finds is not reflective of the current circumstances.

The court heard the matter over the course of five days, including final argument, and the evidence closed on August 28, 2013.   However, upon further consideration, and in light of the case of Mensak v. Mensak, 145 Conn.App. 644 (2013), the court reopened the evidence on November 1, 2013, in order to allow the parties the opportunity to offer additional evidence regarding the discount rate to be applied in the valuation of the wife's remainder interest in the Doolittle Road property.   A further hearing was held on March 14, 2014, where the court heard the testimony of the husband's expert, William Murray, as well as briefly from the wife and her real estate appraiser, Armand Ligouri.   Mr. Murray testified at length and submitted a written report.  (Exhibit # 8.)   The witness testified categorically that a 10% discount rate was not realistic.   Basing his opinion upon a life expectancy of 11.1 years, an average rental in Stamford for a comparable property, and a combination of historical REIT performance return data and the Applicable Federal Rate, he testified that the appropriate discount rate should be 3.37%. Applying that to the market value of the property, results in a value of the remainder of $1,103,806.00.   The evidence was closed on March 14, 2014.

QUESTIONS OF LAW

A. Is the wife's remainder interest in 85 Doolittle Road, Stamford, a part of the marital estate?

Public policy is determined, not by the courts, but rather by the legislature.   For a court to do so, it would be “exceeding [its] constitutional limitations by infringing on the prerogative of the legislature to set public policy through its statutory enactments.”  State v. Reynolds, 264 Conn. 1, 79 (2003).   In family cases as defined by General Statutes § 46b–1, it is the function of the court to divide the marital estate, irrespective of who holds title.  “At the time of entering a decree annulling or dissolving a marriage or for legal separation ․ the Superior Court may assign to either the husband or wife all or any part of the estate of the other.”  (Emphasis added.)  General Statutes § 46b–81.

It is also the function of the trial court to make an equitable division of the marital estate bearing in mind the statutory criteria.   The fact is, that even if the real property in question were not the only significant asset, this very tangible legal interest was acquired while the parties were husband and wife, hence it is part of the marital estate by definition.   Saying that it isn't does not make it so.   Here, the wife's interest in the property at 85 Doolittle Road is the sole significant asset in either party's name at the termination of a 25–year marriage.  “In distributing the assets of the marital estate, the court is required by General Statutes § 46b–81 to consider the estate of each of the parties.”  Mann v. Miller, 93 Conn.App. 809, 812 (2006).   Here, the wife has a vested interest in the real property at 85 Doolittle Road, Stamford.   Moreover, this interest is capable of valuation at this time.   However, for the court to carry out this function, it must have a sufficient evidentiary basis.  Mensah v. Mensah, 145 Conn.App. 644, 653–54 (2013).

B. Is the Agreement dated November 9, 2005, enforceable and binding upon the court?

Any agreement between spouses which seeks to limit the rights of one or both, such as a premarital or post-marital agreement, must conform to certain standards.   Moreover, while a marriage is intact, an agreement with a third party that limits spousal rights, if not outright violative of public policy, should certainly face strict scrutiny.   The fundamental issue involved is not whether under certain circumstances, spouses (or those soon-to-be spouses) can delimit the marital estate for purposes of division upon death or divorce, but rather, can a third party so limit the marital estate, for whatever reason, and defeat the statutory obligation of the court to scrutinize the agreement.   Much like restrictive covenants based upon race, ethnicity, or religious beliefs, which are void by law, an attempt to limit the marital estate by a third party, especially while the marriage is intact, is also void.

It has long been held that agreements that facilitate divorce are void.   Whereas, agreements “when made not to facilitate divorce but solely as an amicable settlement of property affairs, and made in view of divorce proceedings already independently instituted or determined upon, are not necessarily contrary to public policy and void, unless concealed from the court.”  (Emphasis added.)  Baker v. Baker, 187 Conn. 315, 320–21 (1982).   Here there was no divorce proceeding pending, in fact, far from it.   Moreover, the parties cannot deprive the court of its statutory duty to review an agreement between spouses and to determine if it is “fair and equitable under all the circumstance.”  General Statutes § 46b–66(a).

The primary goal of Filomena Sandolo was to be able to live in her home for the rest of her life and where her daughter would provide lifetime care.   Her life estate has value.   The primary interest of the daughter was to obtain ultimate, unencumbered title to the real estate, in return for providing long-term care.   Her remainder interest also has value.   Both mother and daughter have had the benefit of the bargain.   A question for another time is whether or not Filomena Sandolo could undo the transfer, should the court void the husband's waiver, or, in the alternative, grant him an interest in the property.

The waiver by the husband of his legal rights was secondary to that primary bargain, and while it may have been part of Filomena Sandolo's estate plan, it was, nevertheless, mean-spirited, or short-sighted at best, and a likely source of friction between the spouses at some point.   In viewing the Agreement and the circumstances surrounding its execution, it fails the test of even the most basic right to counsel, if not a want of consideration.   The parties were already living under the roof at 85 Doolittle Road, and there is no evidence that they would be evicted in the absence of the husband's signature, only that Mrs. Sandolo would not make the transfer to the wife.   Moreover, although this Agreement does not fall within the strict definition of a post-nuptial agreement, nevertheless, it was executed during the marriage of the parties.   As such, public policy would seem to dictate that it should be viewed with “special scrutiny.”  Bedrick v. Bedrick, 300 Conn. 691, 703–04 (2011).  [Post nuptial agreement.]   Under all the circumstances, no good societal interest is served by the enforcement of this provision.

The foregoing notwithstanding, this court believes that the protracted, contentious, and acrimonious litigation that would very likely follow the judicial abrogation of the agreement in question, would do more harm to all the parties than good.   Accordingly, the court has taken an alternate means to achieve an equitable resolution of this family dispute.

FINDINGS

The Court, having heard the testimony of both parties, and having considered the evidence presented at hearing, as well as the factors enumerated in General Statutes § 46b–40, 46b–51, 46b–62, 46b–63, 46b–81, and 46b–82, hereby makes the following findings:

1. That it has jurisdiction.

2. That the allegations of the amended complaint are proven and true.

3. That the marriage of the parties has broken down irretrievably, and that ample evidence exists that both parties have contributed in some fashion to said breakdown.

4. That during the marriage, neither party has received any aid or assistance from the State of Connecticut or any town or political subdivision thereof.

5. That under all the facts and circumstances, in particular the ages of the parties, and the fact that both parties are in generally good health and capable of supporting themselves, and that neither seeks an award of periodic alimony from the other, it is equitable and appropriate that no periodic alimony be awarded to either party;  that “the power to act equitably is the keystone to the court's ability to fashion relief in the infinite variety of circumstances that arise out of the dissolution of a marriage.   These equitable powers give the court the authority to consider all the circumstances that may be appropriate for a just and equitable resolution of the marital dispute.”   Porter v. Porter, 61 Conn.App. 791, 797 (2001);  that while neither party seeks periodic alimony, the court finds that an award of lump sum alimony is appropriate under all the circumstances;  that an award of alimony must be based upon the statutory factors, including “the award, if any, which the court may make pursuant to section 46b–81.”  General Statutes § 46b–82(a);  Dombrowski v. Noyes–Dombrowski, 273 Conn. 127, 137 (2005);  that “lump sum alimony, unlike periodic alimony, is a final judgment which cannot be modified even should there be a substantial change of circumstances.”  Tremaine v. Tremaine, 235 Conn. 45, 58–59 (1995);  that the wife has a vested interest in the real property at 85 Doolittle Road which will enure to the benefit of her long-term financial security;  and that the award of lump sum alimony will give the husband the present opportunity to provide for his long-term financial security.

6. That throughout the marriage, until their separation, both parties each made significant contributions to the acquisition, maintenance, and preservation of the family assets, including the improvements to the real estate at 85 Doolittle Road, Stamford, Connecticut.

7. That “the weight to be given the evidence and the credibility of the witnesses are within the sole province of the trial court.”  Stearns v. Stearns, 4 Conn.App. 323, 327 (1985);  that “the credibility and the weight of expert testimony is judged by the same standard, and the trial court is privileged to adopt whatever testimony it reasonably believes to be credible.”  United Technologies Corp. v. East Windsor, 262 Conn. 11, 26 (2002);  and that “the trial judge ․ is free to accept or reject, in whole or in part, the testimony offered by either party.”  LaBossiere v. Jones, 117 Conn.App. 211, 224 (2009).

8. That the wife has a present, vested interest in the real property at 85 Doolittle Road, Stamford as evidenced by a valid Quit Claim Deed from Filomena Sandolo dated November 9, 2005, and recorded in the land Records of the City and Town of Stamford in Book 8337 at Page 144.  (Exhibit # 2);  and that her interest therein is capable of valuation and is part of the marital estate for purposes of equitable distribution.

9. That at the time of said transfer of title, the marriage between Vincent Antonucci and Marianna Antonucci, the parties herein, was intact and there was no action pending for dissolution of their marriage.

10. That the portion of the Agreement entered into on November 9, 2005 (Exhibit # 1), in particular paragraph 3 thereof, relating to the husband's waiver of marital and other legal rights is void as against public policy and is unenforceable against the husband, and is, moreover, not binding upon a court in exercising its statutory duty to subsequently dissolve the parties' marriage, award alimony, and provide for an equitable distribution of assets and other relief;  and that as to the remainder of the Agreement, there was sufficient mutual consideration to enforce same as between Filomena Sandolo and Marianna Antonucci.

11. That the fair market value of the real estate at 85 Doolittle Road, Stamford, Connecticut, is $1,280,000.00;  and that the value of the wife's remainder interest is $1,103,806.00.

12. That pursuant to his proposed orders, the husband makes no claim to the wife's interest in “the business commonly known as “John the Baker” and to any business entities and real property associated therewith,” and has, therefore, waived any interest therein.

13. That in arriving at its decision regarding the award of lump sum alimony and property, the court has taken into consideration the statutory factors, giving weight to the length of the marriage, the source of the wife's principal asset (i.e. the remainder interest in 85 Doolittle Road), the limited education of both parties, their occupations and vocational skills, the present assets of each party and the likelihood that neither will likely acquire significant assets in the future, and the fact that neither party has made any other provision for their retirement.

ORDER

IT IS HEREBY ORDERED THAT

1. The marriage of the parties is hereby dissolved, and they are each hereby declared to be single and unmarried.

2. No periodic alimony is awarded to either party.

3. The wife shall be entitled to retain her interest in the premises at 85 Doolittle Road, Stamford, Connecticut, subject to the existing indebtedness and the life estate in her mother.

4. The wife shall pay to the husband, as and for lump sum alimony, the sum of $225,000.00, payable as follows:  On or before July 1, 2014, the wife shall pay to the husband the sum $22,500.00, and a like sum annually on each subsequent anniversary of the first payment, until paid in full.   The foregoing notwithstanding, nothing shall prevent the payment in full or in part at any earlier time, and in the event of the death of Philomena Sandolo, the sale, refinance, or other transfer of the property, or any interest therein, whichever shall sooner occur, the then outstanding balance shall be due and payable in full.   The court shall retain jurisdiction to enforce the provisions of this paragraph.   It is the intention of this court that this obligation shall be non-modifiable, survive the death of either party and the remarriage or cohabitation of the wife, and that it be non-taxable to husband and non-deductible by the wife.

5. Personal property shall be divided as follows.

A. The home furnishings and other personal property, currently in their possession, together with all of their clothing, personal effects, and jewelry, including watches and rings, shall be retained by that party free and clear of any claims by the other.

B. Each party shall be entitled to keep the automobile or other vehicle which they are currently driving, subject to any existing liens, loans, or leases, free and clear of any claims by the other, and each party shall cooperate with the other regarding the execution of any documentation necessary to transfer and/or register same.   In particular, the husband drives a 2001 Chevy pickup truck, a 2005 Harley Davidson “Ultra Classic” motorcycle, and a 1968 Ford Mustang;  and the wife drives a 2009 Jeep Cherokee.

C. Except as otherwise set forth herein, each party shall be entitled to keep their respective savings, checking, and money market accounts free and clear of any claims by the other.

D. The wife shall retain ownership of the John the Baker, Inc. and JDF of Newfield, LLC free and clear of any claims by the husband, and he shall execute any documentation required to effectuate same.   The court shall retain jurisdiction to enforce the provisions of this paragraph.

E. The husband shall retain title to the Orlando, Florida timeshare, free and clear of any claims by the wife, and the wife shall execute any documentation required to effectuate same.   The court shall retain jurisdiction to enforce the provisions of this paragraph.

6. The wife shall promptly notify her employer as to the change of marital status and shall cooperate with the husband in obtaining continuation health insurance coverage as provided by state and federal law.   The husband shall be responsible for the payment of any premiums due for such coverage.

7. Except as otherwise set forth herein, the parties shall each be responsible for the debts as shown on their respective financial affidavits, and they shall indemnify and hold each other harmless from any further liability thereon.

8. Each party shall be responsible for their respective attorneys fees and costs incurred in connection with this action.

9. There having been a contested hearing at which the financial orders were in dispute, the financial affidavits of the parties are hereby unsealed per P.B. § 25–59A(h).

THE COURT

SHAY, J.

Shay, Michael E., J.